Malone v. Stilwell , 15 Abb. Pr. 421 ( 1863 )

Hilton, J.

I think this complaint is open to the objection that it states two distinct causes of action which cannot be joined.

It is true, it commences by alleging, with proper averments, a distinct cause of action against the defendants for slander uttered by the wife, and closes by stating the slanderous words used, but-it adds to this other slanderous words uttered at the same time by the husband. Then follows the averment, “ by means of the committing of which said several grievances by the said Elizabeth Stilwell and Benjamin M. Stilwell as aforesaid, the said plaintiff has been and still is greatly injured in her good name and credit, and also greatly injured in her profession and business, and brought into public scandal, infamy, and disgrace with and among all her neighbors, and other good and worthy citizens, to the damage of this plaintiff $2,000.” Wherefore judgment is demanded for that sum.

Olearly this is an averment, that by reason of this slander, uttered by the husband and by the wife, the plaintiff has sustained the damage for which the action is brought; and should the case go to trial on such a complaint, the plaintiff would, beyond a doubt, be entitled to give evidence'of both the slanders alleged, and recover damages in respect to both (1 Starkie on Slander, 356); and unless this objection, that two causes of action were improperly joined, had been taken by demurrer, the verdict would cure the error.

The demurrer of the defendant, Elizabeth Stilwell, therefore, must be sustained upon the ground therein stated, that several causes of action have been improperly joined; and the order appealed from, so far as it overrules her demurrer, should be reversed.

But the order was right in overruling the demurrer of the defendant, Benjamin M. Stilwell, which asserts that the complaint does not state facts sufficient to constitute a cause of action against him.

Having stated this as his objection, he must be regarded as waiving all others. (Code, § 144, subd. 6; §§ 145-148.)

The complaint alleges not only one, but two causes of action against him. One for the slander spoken by his wife, in an action for which he must be joined as defendant (Matthews a. Fiestel, 2 E. D. Smith, 90), and one for the slander uttered by him, in respect to which the wife is an improper party. (Swithin a. Vincent, 2 Wils., 227; Bacon Ab., Baron & Feme., [L.]; 1 Selw. N. P., 10 ed., 298; 1 Stark, on Slander, 355; 1 Black. Corn., 443; Brown on Actions at Law, 249.) His demurrer was, therefore, not well taken.

Beady, J., concurred.

Daly, F. J.

I held, that the averment that the defendant

Benjamin M. Stilwell spoke the words attributed to him, and that “ by means of his committing that grievance,” the speaking of the words, the plaintiff had been injured, was not a sufficient averment to establish a separate cause of action against him. To constitute a cause of action in slander, it is essential that the words should have been spoken with a malicious intent on the part of the defendant. (1 Stark. on Slan., 384,188,191, 2 Am. ed.) The complaint must show a malicious intent on his part, though it is not necessary to use any precise form of words; a general averment that he spoke them maliciously, falsely, or wrongfully will suffice, or any thing from which a malicious intent in speaking them can be inferred.

The complaint averred that Mrs. Stilwell spoke the words attributed to her falsely and maliciously, but there was no like averment as to the intent with which her husband uttered the words' attributed to him. Upon disposing of the demurrer orally at the special term, I thought that the averment of the cause of action against him for this reason was not complete, and that the plaintiff’s remedy was to move to strike out this part of the pleading as irrelevant, and not to demur. But, upon looking into the authorities, and after examining the complaint more carefully, which is very unskilfully drawn, I am satisfied that a sufficient averment of a separate cause of action against the husband may be extracted from it.

The defamation respectively attributed to the husband and the wife is substantially the same—that the plaintiff stole certain rings belonging to Mrs. Stilwell; and the averment that Mrs. Stilwell uttered what is attributed to her falsely, is an averment that the charge which she made was false, which may be taken also as applying to the charge made by the husband, as it was in substance the same.

The words attributed to the husband are: “Pack up and leave the house, for I always knew that you stole the rings.” Tin’s was imputing to the plaintiff a felonious act. The words were actionable, per se, and no proof of damage or of malice is necessary, the plaintiff being entitled to recover upon proof of the speaking of the words, there being in such a case what is denominated malice in law, and it certainly cannot be necessary for the plaintiff to aver what she is not required to prove. Her statement of the cause of action is complete, if she avers that the defendant spoke of and concerning her words actionable of themselves.

In an anonymous case in Styles Rep., 5, 392, it was said by Bolle, O. J., that án averment, in a declaration, that the words were spoken falsely and maliciously, was not necessary, though, it was in an indictment. In Sergeant Williams’s Ho tes to Sanders (1 Sand., 242, a, note 2), he qualifies the remark, by observing that he supposes that what the chief justice meant was, that the omission in the declaration would be cured after verdict; but I suppose that what he meant was, that it was unnecessary where malice was an inference of law,—in consonance with what was ruled in a case decided more than half a century before Bolle’s time (Mercer a. Spark, Owen, 51), that it is not necessary to aver in the" declaration that the defendant spoke the words maliciously, if the words are in themselves malicious and slanderous; that is, where, as in this casé, they are actionable per se. I agree, therefore, with my brother Hilton, that the decision upoh the demurrer interposed by the wife was erroneous.

Order at special term affirmed, so far as it overrules the demurrer of the husband, and reversed so far as it overrules the demurrer of the wife. Ho costs on this appeal to either party.